Lawyer's gay rights strategy -- patience while public adjusts

Published 4:00 am, Monday, May 24, 2004

Photo: CHITOSE SUZUKI

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Mary Bonauto, right, the attorney for the plaintiffs in the Massachusetts gay marriage lawsuit, listens to speakers during a news conference at the Massachusetts Statehouse in Boston, Tuesday, March 30, 2004. Gov. Mitt Romney wants the state's highest court to put gay marriages on hold now that the legislature has backed a proposed constitutional amendment to bar them. But the state's Democratic attorney general is balking at making the request. (AP Photo/Chitose Suzuki) less

Mary Bonauto, right, the attorney for the plaintiffs in the Massachusetts gay marriage lawsuit, listens to speakers during a news conference at the Massachusetts Statehouse in Boston, Tuesday, March 30, 2004. ... more

If that is so, it was a rather large problem she solved -- or to her critics, created. Nothing less than a court ruling that brought marriage rights to lesbians and gays for the first time in U.S. history, enshrining Bonauto's name in the history books and earning the respect of even her fiercest opponents.

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Nearly seven years later, last Monday, the first fully legal same-sex marriages took place -- acts that vaulted the gay rights movement from piecemeal fights over employment law and hate crimes to the core issue of gay exclusion.

The existence of same-sex marriage in one state opens the gates to legal challenges asking other states to recognize the marriages, and creates the first opportunity to challenge the 1996 Defense of Marriage Act. That federal law allows states to refuse to accept same-sex marriages from other states and more significantly, denies homosexuals the federal benefits tied to marriage - - from tax treatment to immigration rights.

Ironically, Bonauto, who lit the fires of revolution, now is urging everyone to slow down.

Bonauto said she has no immediate plans to file lawsuits to challenge the federal act, even as she predicted these lawsuits would be the first to reach the U.S. Supreme Court.

"To the contrary," she said. "Quite the contrary. I don't think we should rush into court on this."

The public needs time to digest the idea of women marrying women and men marrying men, she insisted.

Indeed, opponents of same-sex marriage are counting on, and trying to foment, a backlash from these images, and have had considerable success already as a result of events in Massachusetts and the flurry of marriages in San Francisco earlier this year. Six states expect to have constitutional bans on same-sex marriage on their ballots in November, and a host of others are taking similar legislative action.

On Tuesday, California's Supreme Court will take up the constitutionality of San Francisco's issuance of more than 4,000 marriage licenses to same-sex couples during late February and early March, which was halted by a court order.

Court victories rely on the larger court of public opinion, Bonauto warned.

"I really think people need time to wrestle this issue down and struggle through the fairness issues," Bonauto said. "Gay people are still a stigmatized minority. That is not true in every social circle, but it is largely true in this culture, and for a lot of folks who are turning on their TVs, this is shocking."

Bonauto recalled how she used to go into court and see the judges look at her thinking, "Oh, she's a lesbian." Now, she said, "I go to court, and the judges are hearing me say this is about equality."

That same change in perspective needs to settle in among the broader public, she argues, so people connect marriage rights to the notion of fairness rather than sexual identity. The Massachusetts marriages mean "people are really having to wrestle down the fairness issues," she said. "And I think that's a good thing. I want them to."

A big part of Bonauto's success has been her ability to pick sympathetic cases whose facts shift the debate. The Goodridge plaintiffs were just such a couple, together 17 years, with an 8-year-old child; a friend joked at their wedding that Julie Goodridge dresses like a Junior Leaguer.

The first big challenge to the federal marriage act, gay legal advocates say, should not be two wealthy gay men trying to save their San Francisco penthouse from estate taxes, justifiable as that cause may be.

"If you ask people, should marriage be between a man and a woman, you'll probably find a majority in some places who will say yes," Bonauto said. "But if you ask, should a World War II veteran who's been with his male partner for 49 years, should that partner be thrust into poverty because when the World War II vet dies, the veterans benefits aren't available to the survivor anymore?

"You'll find an awful lot of people who say that's wrong," Bonauto said. "That's what the federal DOMA means to me, and that's, I think, the face that we need to put on it. Because that's exactly the kind of catastrophic consequences it will impose on people.

"Let this federal government discrimination speak for itself," Bonauto said. "I don't think the American people will like it. But they need to see it first."

Bonauto is passionate about her belief in equality. She grew up with three brothers in the faded working-class town of Newburgh, N.Y., the daughter of Italian and Russian immigrants in what she called a "highly Catholic" family.

She described Newburgh as "a very tough place" where race riots seemed to happen every fall, and "having a name ending in a vowel wasn't the best thing either."

She recalls "falling in love with the Constitution" at age 13 when her family visited Washington. She said she became enamored of the nation's idealism and striving for equality and was particularly fascinated by the Emancipation Proclamation and the 14th Amendment, which sought to "purge the legal part of the legacy of slavery."

"I really believe in equality," Bonauto said. "It's still an unfulfilled promise for gay people. But that's the thing I love about this country. We work on it."

Evan Wolfson, head of Freedom to Marry, who met Bonauto in 1989 and instantly bonded with her as one of the few gay advocates at the time to see marriage as a central cause, agrees that securing marriage rights requires more than court victories.

"We don't see this as some kind of chess game where we are immediately trying to rush to the next move," Wolfson said. There must first be "a climate of receptivity in which courts and legislators can be empowered and emboldened to do the right thing. Litigation is a legitimate and important piece of work in any civil rights movement, but ... we need well-chosen, carefully mounted cases with the backdrop of public engagement to move hearts and minds."

Bonauto is a mild-mannered woman, friendly, diminutive and unassuming. Nothing about her bespeaks a rabble-rouser. She and her partner, Jennifer Wriggins, a law professor at the University of Maine, live in Portland, Maine, and are raising 2-year-old twin girls.

"She's very articulate and soft-spoken, but that should not mislead anyone into thinking she is not able to hold her own," said Ron Crews, the former head of the Massachusetts Family Institute now running for Congress and a vigorous opponent of her effort.

"As a tactician, choosing Massachusetts to be the first state for this litigation, I believe, was a brilliant move on her part," Crews said. "She knew her courts and which one would most likely be favorable to her. We disagree, obviously, on the substance, and I am disappointed in the outcome and she's elated, I'm sure, but I do have respect for her as an able spokesperson for her cause."

Bonauto was praised, thanked and celebrated by clients and colleagues in Massachusetts last Monday as the first marriage licenses were issued.

"I can't speak highly enough of Mary," Wolfson said. "I just think she's a treasure both personally and professionally. ... Everyone respects and honors Mary for her commitment and judgment and skill in winning case after case and playing a pivotal role in shaping the strategy, not just in New England but nationally."

Only once does Bonauto seem the slightest bit fierce, when she hits her hand on the table -- ever so gently -- to emphasize how the government's denial of marriage rights can "smash" a lesbian couple's nest egg built over their 33 years together.

But it is these individuals and their problems that have driven her crusade ever since her first day on the job at GLAD on March 19, 1990, when on her desk was a request from a couple from western Massachusetts who wanted to get married.

She said no to that couple, the first of many she refused.

"I always wanted to say yes, but I had to get to a point where we could say yes, to even think about filing litigation," Bonauto said.